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different branches of the tree structure. Kugimiya discloses a system for translating

documents from English to Japanese. As part of the translation process, Kugimiya

finds,

removes,

and

stores

any

XML

tags

in

a

separate

file.

The

program

then

translates the document’s content from English to Japanese, after which it puts the XML

tags into the translated document.

After the tags are replaced, the separate file

containing the tags is discarded.

Although obviousness is a question of law, it is based on factual underpinnings.

As always, our review of the ultimate legal question, whether the claimed invention

would have been obvious, is de novo. Duro-Last, Inc. v. Custom Seal, Inc., 321 F.3d

1098, 1108 (Fed. Cir. 2003). The extent to which we may review the jury’s implicit

factual findings depends on whether a pre-verdict JMOL was filed on obviousness. Id.;

see also Jurgens v. McKasy, 927 F.2d 1552, 1557-58 (Fed. Cir. 1991).

In this case, Microsoft has waived its right to challenge the factual findings

underlying the jury’s implicit obviousness verdict because it did not file a pre-verdict

JMOL on obviousness for the Rita, DeRose and Kugimiya references. Fed. R. Civ. P.

50(a), (b). As we explained in Duro-Last, a party must file a pre-verdict JMOL motion

on all theories, and with respect to all prior art references, that it wishes to challenge

with

a

post-verdict

JMOL.

321

F.3d

at

1107-08.

Microsoft’s

pre-verdict

JMOL

on

anticipation, based on S4, was insufficient to preserve its right to post-verdict JMOL on

a different theory (obviousness), or on different prior art (Rita, DeRose, Kugimiya).

Duro-Last, 321 F.3d at 1107-08.

Accordingly, we do not consider whether the evidence presented at trial was

legally

sufficient

to

support

the

jury’s

verdict.

Our

review

is

limited

to

determining

2009-1504

14

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